The Usa Patriot Act Of 2001

Patriot Games: Congress and the USA PATRIOT Act

Samuel Rubenfeld PSC 122 Professor Richard Himelfarb November 17, 2008

Word Count: 3,900

Introduction A clear, sunny Tuesday morning in September 2001 began breezily enough. People went off to work, dealing with the hassles of everyday life. It was supposed to be a regular day. At 8:46 a.m., however, a plane blotted out the blue sky. Hellfire burst from Lower Manhattan, from the Pentagon and from a field in Pennsylvania. And President George W. Bush, along with the Congress, after collecting themselves and plotting a response, sprung into action: Everyone vowed never to allow this to happen again, by nearly any means necessary. Within 48 hours after the attacks, the Senate approved increasing wiretap powers, and the run-up to passage of the USA PATRIOT Act of 2001 began. The process of passing this law showed how Congress when pushed by events, especially when coupled with an atmosphere of crisis and fear, is willing to hastily and quickly defer its power to the executive.

The PATRIOT ACT: How It Passed The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, or USA PATRIOT Act, signed into law Oct. 26, 2001, took less than seven weeks to write, approve, pass and sign. (“President Signs”) It is a testament to the speed at which Congress can work—when pushed. The Sept. 11 terrorist attacks thrust Congress immediately into action: By Wednesday night, the Senate had already passed an amendment to the appropriations bill financing the Justice Department that “makes it easier for law enforcement to wiretap computers and combat cyber-terrorism,” according to an article in the Sept. 14, 2001 New York Times. Lawmakers were discussing the need to consolidate the country’s counterterrorism intelligence powers under one agency by Thursday, in addition to the already increasing urgency to give the executive branch more wiretapping power. After passing

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the larger appropriations bill, the serious work of overhauling intelligence gathering began. After the attacks, there was considerable political will to do something: that appropriations bill with the wiretap amendment passed the Senate 96-0, and approved the use of force in response to the attack by a 98-0 vote. (“Senate Approve”) Polls taken following the attacks gave President Bush a 90 percent approval rating—a record. People polled trusted their president and wanted him to take whatever action necessary to put down the evil that manifested itself that fateful Tuesday, and they wanted it fast. Despite the huge political will, however, there were immediate critics to the increase in surveillance. Civil liberties groups waited for the dust to settle before making their voices heard. In a Sept. 15, 2001 article in the New York Times, the American Civil Liberties Union expressed concern that Congress was moving too fast in enacting the wiretap legislation. But every member of Congress interviewed for the story was in lockstep: Get the measure passed immediately. The next day, Sens. Patrick Leahy (D-Vt.) and Orrin Hatch (R-Utah) held a press conference after they met with Attorney General John Ashcroft where they vowed to “do whatever it takes Constitutionally and otherwise” to prevent a terrorist attack. That same day, Sept. 16, Ashcroft and FBI Director Robert Mueller jointly asked Congress to expand their powers to fight terrorism, citing the possibility of other terrorists living in the United States. Also on Sept. 16, Bush held a press conference, during which he referred all questions about a legislative agenda concerning law-enforcement power to the Attorney General. (“Today We Mourned.”) By Monday morning, the House Judiciary Committee said it cleared its calendar to work on the counter-terrorism legislation. (“Ready to Move”) For much of the discussion surrounding the PATRIOT Act, the executive branch was in the driver’s seat, controlling the message and dictating the terms of the debate. The Sept. 15 Boston Herald, citing “sources,” reported that intelligence officials, worried about another attack,

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began ratcheting up their tracking of anyone with even a shade of a tie to a terrorist, even government workers with high-level security clearances. (“Feds Concerned”) On Sunday, Sept. 16, the Bush administration blitzed the Sunday political talk shows to frame the debate in biblical terms: “We also have to work, though, sort of the dark side, if you will. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies…it's going to be vital for us to use any means at our disposal, basically, to achieve our objective,” Vice President Dick Cheney said on “Meet the Press” that Sunday.

With rhetoric like that coming from the executive branch, in addition to the carnage they’d seen five days before, much of Congress was spooked into submission. Capitol Hill was going to give the president all the tools he wanted, and then some, to fight Al Qaeda and win a “War on Terror.” By Monday, Sept. 17, six days after the attacks, Congress began holding hearings on how to beef up intelligence gathering and increase executive power. The Senate Judiciary Committee began discussing how to give intelligence officials more power to use wiretaps to combat terrorists, while House Democratic leader Richard Gephardt expressed a willingness to work with the White House on counterterrorism legislation. (“Assault On America,” Houston Chronicle) Rep. Bob Barr (R-Ga.) wrote Ashcroft and House Judiciary Committee Chairman F. James Sensenbrenner (R-Wisc.) a letter on Sept. 17 urging caution before enacting legislation heightening security measures at the expense of civil liberties. (“Barr Opposes”) An article from the Tuesday, Sept. 18, New Orleans Times-Picayune reported that Sen. Bob Graham (D-Fla.), chairman of the Senate Intelligence Committee, called for the lifting of an executive order signed by Gerald Ford that prohibited the assassination of world leaders by the CIA; he also suggested the CIA loosen its ban on hiring those with “bad backgrounds.” As the Justice Department began writing draft legislation for Congress to consider, lawmakers went on a short recess for the Page 4

Jewish holiday of Rosh Hashanah. Throughout the week of the attacks, and continuing thereafter, the president and his administration played a key role in the negotiations. His bellicosity towards the Taliban meant certain war with Afghanistan, especially after the Afghan government refused to hand over Osama Bin Laden, the head of Al Qaida. On Sept. 17, Bush said he wanted Bin Laden “dead or alive.” (“W Wants Osama,” Daily News) Ashcroft delivered the draft legislation on Sept. 19. Congressional leaders said they hoped to get to the Ashcroft proposals by the following week, citing a need to pass defense authorization and airline bailout bills during the abbreviated session, as well as scrutinizing and fine-tuning the bill before passing it. Meanwhile, the administration was ramping up the tension. The Justice Department changed its rules regarding detained immigrants, doubling the time they can be held before having to decide whether to release or charge them to 48 hours. That time constraint could be waived altogether for what the Justice Department called “extraordinary circumstance.” More key leaders on both sides of the political spectrum came out against the bill: Grover Norquist, a leading conservative, said Ashcroft’s urgency in getting it passed meant the administration was hiding something. “That's code for if anybody read it, it wouldn't pass.” (“U.S. Widens Policy”) During a major speech to a joint session of Congress on Sept. 20, Bush proclaimed: “Whether we bring our enemies to justice, or bring justice to our enemies, justice will be done.” (“Address to a Joint Session”) The sense of urgency from the administration may have caused them to shoot themselves in the foot. By Friday, Sept. 21, Congressional leadership announced it would not act on the administration’s proposal that week, and instead would hold hearings beginning early next week. A New York Times article from Sept. 21 reports that the House created a special intelligence subcommittee to concentrate on terrorism and homeland security, chaired by then-Rep. Saxby

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Chambliss (R-Ga.) and that the committee will begin holding hearings the following week. A Gannett News Service report from Sept. 21 indicated that, “in a break from tradition,” the new select intelligence subcommittee would conduct its hearings in the open. In the Times article, Rep. J.C. Watts (R-Okla.), chairman of the House Republican Conference, said he will “be a tougher sale than any of my colleagues,” signaling a slight rift between the administration and its more conservative intraparty counterparts. The Senate also began to act by Sept. 21, with Minority Leader Sen. Trent Lott (R-Miss.) expecting quick action, and Leahy, the Senate Judiciary Committee chairman, saying he drew up his own list of priorities, including toughening money-laundering laws and authorizing “roving wiretaps” for surveillance of suspected terrorists. Senate Intelligence Committee Chairman Bob Graham (D-Fla.), along with Sen. Dianne Feinstein (D-Calif.), introduced the first two bills responding to the administration’s requests. The first would create a White House office to coordinate the 40 agencies that combat terrorism, while the other would allow the government to obtain wiretaps for any phone used by a suspected terrorist. The second bill would also eliminate the need to renew wiretap orders for suspected terrorists after they expired. (“Senators Introduce”) Despite passing $55 billion in emergency funding in response to the attacks within a few days, it was taking Congress longer to become organized enough to pass stronger anti-terror measures. Nearly two weeks after the attacks, Congress began holding hearings on whether to expand the power of federal law enforcement to combat terrorism. On Monday, Sept. 24, John Ashcroft testified to the House Judiciary Committee, telling the committee the “fight against terrorism is now the highest priority of the Department of Justice” and delivering a broad outline of what he called the administration’s “modest” proposal to combat terrorism. But the committee’s minority members were not entirely happy with the presentation: Ranking member

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Rep. John Conyers (D-Mich.) said he was “deeply troubled” by the wiretap provisions but that he still wanted the process to go forward. Rep. Barney Frank worried about the sharing of intelligence, saying it reminded him of the “savage campaign of defamation waged by J. Edgar Hoover as head of the FBI against Dr. Martin Luther King.” Barr, considered one of the moset conservative members in all of Congress, asked why it had to be rushed through. House markup on the draft legislation was expected to begin the next day, but after protests during hearings, they tabled it for at least a week. (“Lawmakers Tap Brakes”) That same day, the administration’s proposals hit a snag during a hearing with Justice Department subordinates not just with Senate Democrats but also with at least one Senate Republican, Sen. Mike DeWine (R-Ohio), according to a Sept. 25 article in the Washington Post, where he questioned the constitutionality of the provision lowering the requirement to obtain a warrant for wiretapping. Congress was not ready to hand over such power to the executive branch without a fight, even if it was a small one. After his contentious hearing at the House, Ashcroft spent Tuesday, Sept. 25 testifying to the Senate Judiciary Committee. He spoke in a slightly more mollifying tone, emphasizing the constitutionality of the administration’s proposal. “I can assure the committee and the American people we are conducting this effort with a total commitment to protect the rights, the constitutional rights and the privacy of all Americans,” he said in his opening statement. He also said, however, “the American people don't have the luxury of unlimited time” in figuring out how to legally fight terror, a broadside against the House for tabling its vote until the following week. Though more genial in tone, the Senate did question major parts of the draft legislation. Its largest problem was with the immigration provisions, namely that the federal government could hold detainees indefinitely without charging them, so long as the Attorney General said they were a threat. Ashcroft softened the bellicose language of the draft legislation on the detainee

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issue somewhat during the hearing, saying it needed to be clarified. Members of both parties proposed a sunset provision for the most controversial elements of the bill, but Ashcroft opposed it. (“Senate Judiciary Questions”) Day by day, the threads of consensus began to weave themselves together. The week of hearings on Capitol Hill allowed Congress to reassert its authority in policymaking, even after the Sept. 11 attacks. “At least for now, the House and Senate Judiciary committees—not the Bush administration or congressional leadership—are in control,” reported CQ Weekly in its Sept. 28, 2001 issue. By forcing the Attorney General to testify publicly on the issues found in its proposal, it exposed the differences in approach between the House and Senate, with the upper chamber being more willing to defer power to the executive. It also provided an opening for Bush to take the moral high ground while Congress battled over the legislation: he thanked Central Intelligence Agency employees for their work on Sept. 26, saying he intends to get them everything they need to prosecute the new “War on Terror.” (“President Thanks CIA”) The fissures, at this point, however, didn’t seem to concern the members: The chambers were willing to work together, and to work with the White House, but they needed to finish their own work first. Legislation concerning a major overhaul of the Bush administration’s anti-terror initiatives still did not make it to the president’s desk by the beginning of October, and the administration became impatient. Bush asked Congress for “new law enforcement authority, to better track the communications of terrorists, and to detain suspected terrorists until the moment they are deported” in his weekly radio address, aired Saturday, Sept. 29. (“Radio Address”) Ashcroft spent the last day of September making the rounds on Sunday talk shows saying Al Qaida was still plotting to attack the U.S. while Congress was sitting on its hands with the

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legislation, according to a story in the Oct. 1, 2001 New York Times. The Times story details many legislative efforts of years past—most of which died in Congress or were never implemented. But by the afternoon of Monday, Oct. 1, the House Judiciary Committee announced it had come to an agreement on compromise legislation, and that it would introduce the bill Tuesday, for markup to begin the following day. The bill, dubbed the “Patriot Act,” includes much of what Ashcroft asked for in his initial proposal, but it significantly weakened or outright eliminated some of the more controversial issues, such as detainees only being able to be held for seven days, and calling for a two-year sunset provision for the electronic surveillance. (“House Bill Expand”) Still, Barr did not like it, saying he still harbored concerns with the compromise bill. (“Negotiators Back”) The House Judiciary Committee approved it Wednesday night, Oct. 3, by a 36-0 unanimous vote, with markup amendments that included enough concessions so Barr could to support it. (“Committee Passes”) The seeds planted by the administration, after three weeks of threats and negotiation, finally were germinating. While the House version of the bill was coming together, the Senate still squabbled over the proposed legislation. Sen. Russ Feingold (D-Wisc.), chairman of the Subcommittee on the Constitution, Federalism and Property Rights, held a hearing Wednesday, Oct. 3, on the constitutionality of the wiretapping provisions. Norquist, president of Americans for Growth, implored lawmakers to read the entire bill before passing it, as he said many provisions may in fact be unconstitutional. Morton Halperin, a civil liberties advocate, who also testified but from a unique perspective: he was wiretapped during the 1960s and early 1970s. “Reading the government logs of your private phone calls for an extended period does bring sharply into focus the danger of abuse and value of privacy,” Halperin said. (“Hill Due”) Also, negotiations between the White House and the Senate broke down Tuesday night, Oct. 2, after Senate

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Democrats accused the White House and Ashcroft of sending mixed messages and reneging on agreements; Ashcroft accused the Senate Democrats of stonewalling on badly needed legislation. (“Bill Hits Snag”) Senate Republicans thought the sunset provisions proposed by the Democrats, also found in the House bill, would handcuff investigators. (“Antiterror Bill Faces Hurdle”) By Wednesday, however, the Senate reached an agreement with the White House, but declined to reveal the details of the agreement. (“Senators Agree”) Majority Leader Sen. Tom Daschle (DS.D.) said that when a formal agreement was announced, the bill would go straight to the Senate floor for a full vote, bypassing the Judiciary Committee. (“Panel Approves Bill”) Both houses of Congress now had their respective bills to pass by the end of the first week of October, and said they would come to a vote the following week. But there were significant substantive differences between the bills: The Senate’s version of the bill gave much more authority to law enforcement officials than the House version did. The House version had a two-year sunset provision for wiretap powers; the Senate version did not. The House bill required, that to charge someone with harboring terrorism, the person must have committed or imminently committing one; the Senate bill simply required “reasonable grounds to believe” the person was about to commit a terrorist act. (“Terror Laws Near Votes”) Both bills still, however, contained many of the demands from the administration and from the Justice Department. Anticipation ran high over the weekend, and into the next week: was the Congress actually going to pass it, or would it balk? Over the weekend, President Bush announced that the U.S. began bombing Al Qaeda training camps in Afghanistan, exercising the use of force authorization delivered by Congress immediately following the attacks. Bush said he gave the Taliban an ultimatum to deliver Bin Laden; they failed to give him up. He emphasized the battle being broader: “In this conflict, there

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is no neutral ground. If any government sponsors the outlaws and killers of innocents, they have become outlaws and murderers, themselves. And they will take that lonely path at their own peril.” (“Address to The Nation”) The action put more emphasis on the events up on Capitol Hill. With the White House announcing it was beginning a war, the Capitol still worked on delivering Bush the legislation he wanted. In a textbook example of how little power Senate leadership has over its chamber, Daschle couldn’t muscle the “Patriot” bill through without a fight. On Tuesday night, Oct. 9, Feingold refused to let the bill reach a vote without debate or the chance to propose an amendment. He proposed a battery of changes to the compromise bill concerning secret searches, wiretapping telephones, curtailing FBI access to American’s personal records and clarifying the federal government’s ability to tap computers. (“Feingold Blocks”) Feingold’s proposals caused the Senate to delay the vote for another week. The House, however, had its own problems. It was involved in a tug-of-war between White House loyalists who want the House to abandon the unanimously-approved Judiciary Committee measure and those who harbor philosophical misgivings with the Senate version of the bill. (“Defiant House Opposes”) The White House pushed the Senate bill, which the chamber crafted in close consultation with the administration, and hewed much more closely to its interests. (“Powers Hit Snag”). The White House commended both houses of Congress for passing their respective versions of the bill, calling them “virtually identical” and asking Congress to quickly get the bill on the president’s desk. (“President Commends House”) By the end of a contentious week, both houses passed “Patriot” bills, but there was still much work to be done. On Thursday night Oct. 11, the Senate passed its version of the bill 96-1, with Feingold the only senator to vote against it, and with Leahy voting for it despite “misgivings.” (“Senate Passes Expansion”) During a primetime press conference Thursday night,

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Bush said information sharing between the CIA and the FBI was already “seamless.” (“President Holds Press Conference”) In the House, the bill passed 337-79 on Friday, Oct. 12, but what was passed was starkly different than the Judiciary Committee compromise. The House adopted the Senate version, but added a five-year expiration to the most controversial measures of the bill and it dropped the money-laundering provision from the bill. (The House was debating the issue as part of separate legislation.) However, “We will not support a counterterrorism bill that does not have money-laundering provisions in it,” Daschle said. (“House Passes”) The House-passed bill went to the Senate for final conference approval, setting the stage for the bill to reach Bush’s desk the following week. In just over a month, Congress was almost ready to send the largest expansion of executive power in decades to the president’s desk for signature. The only thing holding the bill up: reconciliation between the two houses of Congress, prevented initially by an anthrax scare. A burgeoning scandal that had already engulfed titans of the news media, the Senate became the next victim of a bioterrorist attack on Monday, Oct. 15, when Daschle’s office received a letter containing white powder that preliminary tests identified as anthrax. Daschle’s personal office was closed and 40 employees were tested for exposure to the bacteria. Despite the incident, Daschle insisted he would continue to try and get the bill through the senate by the end of the week. (“Anthrax Incident May Slow”). The final tests came back positive, and it caused both the Senate and the House to close all six of its buildings for further testing. The House cancelled all business until the following Tuesday, while the Senate continued its business despite its offices being shut. (“Anthrax Threat”) By Thursday, Oct. 18, the “Patriot Bill” cleared its last hurdle before passage, after House negotiators agreed to put the money-laundering provision back onto the bill. Negotiators had already agreed the day before to a four-year sunset on the secret searches, electronic surveillance and wiretapping, the most

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controversial parts of the legislation. The White House hailed the pre-conferenced version of the bill, and eagerly awaited its passage the following week. (“Senators Say Finished”). With the house shuttered amid the anthrax scare, the compromise bill sat dormant for almost a week. But after the house reopened, the chambers began voting on Wednesday, Oct. 24. The House passed the final version of the bill 357-66. The senate passed it the next day, 98-1, with Feingold, again, the only one opposing. Sen. Mary Landrieu (D-La.) did not vote. The bill, after all the cantankerous debate, threats, negotiation and compromise, was ready for the president’s signature. Bush signed the USA PATRIOT Act on Friday, Oct. 26, hailing the law as “essential not only to pursuing and punishing terrorists, but also preventing more atrocities in the hands of the evil ones.” (“President Signs”) Conclusion The seven-week sprint that led to the PATRIOT Act’s passage gave the president and law enforcement agencies unconstitutional power to potentially exact revenge on enemies political and personal, as report after report from Congress, and from the news media, showed the administration did after the law’s signing. In passing the law, Congress lost the power of oversight, and the Bush administration abused it far more than even the most critical member of Congress could have anticipated. The Supreme Court has ruled multiple parts of the law unconstitutional, including ruling the indefinite detention provision out of constitutional bounds three times. The rushed passage of such consequential legislation should serve as a lesson for future Congresses. By getting caught up in the post-Sept. 11 fervor to find someone to hold accountable for the attacks, Congress abdicated its responsibility as a deliberative body.

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